THE BRAINS BEHIND MEDIATION: REFLECTIONS ON …

1 \\jciprod01\productn\C\CAC\12-2\ : 131-MAY-1110:22 THE BRAINS BEHIND MEDIATION: REFLECTIONS ON NEUROSCIENCE,CONFLICT RESOLUTION ANDDECISION-MAKINGD aniel Weitz*INTRODUCTIONOn September 13, 1848, an explosives charge sent a three-foottamping iron about an inch in diameter through the head of Phin-eas Although Gage survived, the tamping iron, which en-tered just under the left eye and exited through the frontal portionof his head, destroyed his prefrontal Prior to the accident,Gage was a popular foreman of a railroad construction Af-ter the accident, he was a tactless, profane, and impulsive man witha dramatically altered is through extreme examples of severe deficits in the brainthat scientists were able to develop our earliest descriptions of howthe brain affects behavior. Today, advances in neuroscience havegiven us unprecedented insights into the workings of the A great deal has been discovered in disciplines rangingfrom cognitive-behavioral psychology and neuropsychology to mo-lecular biology.

2 To what extent these discoveries impact otherfields, including the dispute resolution profession, is now a hotly-pursued topic. While a quick survey of recent studies of the brainproduces a flood of connections to the practice of mediation, even* Dan Weitz is the Statewide ADR Coordinator for the NYS Unified Court System and anAdjunct Clinical Professor at the Benjamin N. Cardozo School of Law. The views expressed inthis article are his alone and do not reflect those of the Unified Court System or Cardozo Schoolof The Phineas Gage Information Page Maintained By Malcolm Macmillan, (last visited Feb. 14, 2010). a great explanation of functional magnetic resonance imaging (fMRI), see MARCOIACOBONI, MIRRORING PEOPLE, THE SCIENCE OF EMPATHY AND HOW WE CONNECT WITHOTHERS 59 (2009). For a description of transcranial magnetic stimulation (TMS).

3 Id. at brain imaging techniques include electroencephalography (EEG) and magnetoencepha-lography (MEG).Id. at 162, \\jciprod01\productn\C\CAC\12-2\ : 231-MAY-1110:22472 CARDOZO J. OF CONFLICT RESOLUTION[ :471neuroscientists caution against the certainty of their is still more research to be done and many of these studiesprovide evidence of correlation but not necessarily causation. Per-haps we should resist the temptation to champion a long sought-after scientific basis for all that we do as mediators. However,there is no denying the fascination with what we are learning aboutthe human brain, how it guides our behaviors, and how it impactsthe way we make decisions. At a minimum, it is cause for OUR NEGATIVE VIEW OF CONFLICTM ediation training programs often begin with a conflict wordassociation exercise to explore the nature of conflict.]

4 Trainees typi-cally produce a list of similarly negative words including argue,fight and disagreement. This list propels a lively discussion of whywe tend to view conflict as something that is always negative. Wepoint to television, our past experiences and even our parents. Af-ter encouraging reflection, sometimes through small group exer-cises, mediation trainers ask whether anything positive ever comesfrom conflict. Trainees list a number of positives including clarity,recognition, understanding, and improved relationships. Thetrainer then hopes the group will come to appreciate that conflict isnot inherently good or bad but that the nature of conflict oftendepends on how it is discoveries in the field of neuroscience shed evengreater light on our predominantly negative view of conflict. InNurture Shock, Po Bronson and Ashley Merryman discuss thework of Dr.

5 E. Mark Cummings at the University of Notre studied the impact that everyday parental conflict mayhave on children. Cummings found that the typical married couplehad about eight disputes each day and that spouses were roughlythree times more likely to express anger to each other as they were6 See Edward Gandolf, Cautions About Applying Neuroscience to Batter Intervention 3 (cit-ing NEUROSCIENCE AND THE LAW: BRAIN, MIND, AND THE SCALES OF JUSTICE (Brent Garland& Mark Frankel, eds. 2004)), available at (last visited Mar. 6, 2011); see alsoNigel Eastman & Colin Campbell, Neuroscience and Legal Determination of Criminal Responsi-bility, 7 NATURE REV. NEUROSCIENCE 311 (Apr. 2006), available at BRONSON & ASHLEY MERRYMAN, NURTURE SHOCK184 (2009).\\jciprod01\productn\C\CAC\12-2\ : 331-MAY-1110:222011]THE BRAINS BEHIND MEDIATION473to show Children are witnesses to these conflicts forty-five percent of the Cummings staged experiments to seewhat impact this type of conflict had on children.

6 Ultimately, whathe found was that witnessing the conflict itself did not result in anynegative change in the child s behavior, provided the child was al-lowed to see the resolution of the It was only whenthe argument was stopped in the middle before resolution that ithad a negative effect on the child s Cummings has evenshown that being exposed to marital conflict can be good for chil-dren provided it is constructive and resolved with for a moment about our own childhood experienceswith conflict. Did our parents fight? If so, was it constructive con-flict? And as to a more subtle point, as Bronson and Merrymanhighlight, did our parents ironically make matters worse by takingthe fight upstairs or into the other room, thus sparing us the expo-sure? If so, did they remember to tell us that they worked it allout?

7 Bronson and Merryman also point to a body of research onthe nature of conflict among Dr. Hildy Ross of the Uni-versity of Waterloo found only about one in every eight conflictsbetween siblings ends in compromise or In theother seven conflicts, the siblings withdraw usually after the olderchild bullied or intimidated the younger Scottish re-searcher Dr. Samantha Punch concluded, Sibship is a relationshipin which the boundaries of social interaction can be pushed to thelimit. Rage and irritation need not be suppressed, whilst politenessand toleration can be neglected. 16 Children made seven times asmany more negative and controlling statements to their siblings asthey did to their friends, according to Dr. Ganie DeHart of SUNYG eneseo in New and Merryman wonder what siblings learn from thethousands and thousands of interactions that they have with eachother when, no matter how the conflict is handled, they will still & MERRYMAN,supra note 7, at at at 120 21.

8 \\jciprod01\productn\C\CAC\12-2\ : 431-MAY-1110:22474 CARDOZO J. OF CONFLICT RESOLUTION[ :471together the next day. They suggest perhaps that children learnpoor social skills from those interactions, just as often as they learngood ones. They learn of conflict, but not necessarily and Merryman also provide support for those whoclaim that we get our negative view of conflict, and perhaps ourpoor conflict resolution skills, from children s television. Citingstudies involving comparisons of educational television with moreviolent children s shows, we now know that while children may beless violently aggressive after watching educational television, theyare far more relationally Bronson and Merryman ex-plain that while physical aggression can include pushing or hitting,and verbal aggression often involves name calling, relational ag-gression involves ignoring or telling lies about another child.]

9 Themore children watched educational television, the more control-ling, manipulative and bossier they became. Bronson and Mer-ryman point out that one possible explanation for thisphenomenon may be that educational television spends most of itstime establishing conflict between characters and very little timeresolving it. Preschoolers, for example, are said to be less able toconnect the information from the end of the show to what hap-pened earlier. They tend to learn from the individual behaviorsshown rather than the overall and Merryman not only provide us with insights intoour views on conflict, but they also provide us with food forthought on why we behave the way we do in For exam-ple, significant research has been done on the importance of sleep,which supports the position that we consolidate learning and storememory during Bronson and Merryman report that ac-cording to these studies, negative memories are stored in the amyg-dala (an area of the brain associated with strong emotions such asfear) while neutral and positive memories are stored in the hippo-campus (an area of the brain associated with storage of memoryand conversion of short term to long term memory).

10 23 Further-more, lack of sleep is harder on the hippocampus than it is on theamygdala, so we may remember negative feelings and events more18Id. at & MERRYMAN, supra note 7, at at at 33 at 35.\\jciprod01\productn\C\CAC\12-2\ : 531-MAY-1110:222011]THE BRAINS BEHIND MEDIATION475so than neutral or positive ones. Could this explain why we sooften seem to judge people in conflict by their most negative po-tential? Other studies have shown that stress can cause a similareffect on the During situations of stress, hormonescalled glucocorticoids are released in the Glucocorticoidsare known to cause damage to the hippocampus. In fact, underextreme conditions, glucocorticoids can kill brain cells in the This suggests that stress, and the brain chemistry con-nected with it, is not only related to our negative view of conflictbut perhaps our negative view of those with whom we have conflictand how we interact with can we learn from the field of neuroscience and thesestudies of the brain, conflict and even educational television?